LOTURCO v. BARNHART

The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On October 16, 1997, Jeanne Loturco ("Loturco"), filed this
action pursuant to the Social Security Act, 42 U.S.C. § 405(g),
to obtain review of the final decision of the Commissioner of
Social Security ("Commissioner") denying her application for
disability benefits. Loturco asserts that she was totally
disabled for two years as a result of a car accident in which she
suffered whiplash. The Commissioner and plaintiff cross-moved for
a judgment on the pleadings. The motions principally address
whether the appropriate weight was given to the opinions of
treating physicians. For the reasons that follow, Loturco's motion is
denied, and the Government's cross-motion is granted.

BACKGROUND

The following facts are taken from the administrative record.

Medical History

On September 27, 1996, Loturco got into a car accident and was
subsequently taken to the Nyack Hospital emergency room for
medical assistance.*fn1 Loturco was examined by Dr. Neal
Kane ("Dr. Kane"). She complained of back pain, shoulder pains, a
mild occipital headache, and some numbness in her arms. The
majority of discomfort came from the left side of her body. Dr.
Kane's impression was that Loturco did not appear to be in great
pain and that the impact of being rear-ended in the accident
caused a cervical, thoracic and lumbar strain, but not a
fracture. Dr. Kane was confident Loturco's minor pain would be
temporary. She was discharged the same day with instructions to
take Tylenol and to go for further testing.

The following day Loturco went to Arden Hospital, as
recommended, to have more tests done to examine her neck. The
x-rays revealed that there was no fracture of the cervical
vertebrae. The attending physician also diagnosed a cervical strain and told Loturco to rest, wear a cervical collar for
support, use warm soaks, and take Tylenol #3 and Motrin. A follow
up with an oral surgeon was also suggested.

On September 30, Loturco went to her primary care physician,
Dr. John Carey ("Dr. Carey"), complaining of neck and shoulder
pain and a tingling sensation in her fingers. Dr. Carey conducted
an examination and determined she suffered from a cervical strain
and spasm, and whiplash syndrome resulting from the car accident.
Dr. Carey prescribed Flexeril and Vicodin, and told Loturco to
undergo an MRI. At this time, Dr. Carey also referred her to
several specialists.

As instructed by Dr. Carey, Loturco had an MRI taken on October
1, which revealed "a right of midline disc herniation at C6/7
encroaching on the anterior subarachnoid space but not touching
the ventral border of the cord." A slight disc bulge at C5/6
appeared in the MRI, but no other problems were detected.

In addition to the MRI, Loturco underwent an electrodiagnostic
study on November 19. The electromyography ("EMG") revealed she
had normal motor and sensory capabilities. The test also showed
an irritability of the C5 muscular which "may be suggestive of a
cervical radiculopathy."

The first recommended specialist Loturco visited was Dr.
Jeffery Schnapper ("Dr. Schnapper"), a chiropractor. Dr.
Schnapper agreed to treat Loturco two to three times per week for
her symptoms of headaches and pains in her neck, lower back, jaw,
arm, and leg.

On February 19, 1997, Loturco met with Dr. Ira Neustadt ("Dr. Neustadt"), the recommended neurologist. The examination revealed
that Loturco had a "primarily residual myofascial type pain with
residual cervical and shoulder girdle strain." The conclusion was
based on the fact that Loturco's motor strength was rated a five
plus on a scale of zero to five, with five being the capacity of
normal movement. She reacted well to a pinprick test, and she
retained the ability to sit, walk, and move around with minimal
pain. Dr. Neustadt emphasized the importance of reassuring the
patient that "she will get better," and that conservative
measures of treatment such as ice, moist heat, massage, and
gentle physical therapy were the most appropriate to remedy her
slight decreased range of neck motion. Occasional use of
non-steroidal anti-inflammatory agents such as Relafen, combined
with Zantac or Cytotec was also recommended. Dr. Neustadt
believed Loturco could gradually return to work if she continued
to apply the above conservative measures each night when she got
home.

On February 25, Loturco visited her primary dentist, Dr.
Stanko. Loturco complained of tightness in her jaw and frequent
headaches. Upon conclusion of the examination, Dr. Stanko
diagnosed her with capsulitis of the right and left
temporomandibular joint ("TMJ"), retrodiscal synovitis of the
right TMJ, myalgia of masticatory and cervical muscles, cervical
dysfunction, and tension-type headache. Treatment for this
condition ranged from seven to twelve months.

On March 5, 1997, Loturco was referred by Dr. Schnapper to Dr.
Richard Semble ("Dr. Semble"), an orthopedist. Loturco again
explained her medical history and symptoms of neck and lower back pain, and numbness in her fingers. Dr. Semble examined her
cervical spine and found that her extension was slightly limited,
but that the more prevalent problem was the restriction on her
right rotation. Her rotation of the shoulders was limited to one
hundred-sixty degrees, which appeared to Dr. Semble to be caused
by the pain coming from the cervical area. Loturco was diagnosed
with chronic cervical strain and recommended trigger point
injections because her symptoms seemed to respond positively to
that form of treatment. In addition, continued chiropractic
treatment was recommended.

Between May 23, and October 14, Loturco received thirty-five
treatments of massage therapy for her whiplash symptoms. Loturco
initially spoke positively about her massage therapy treatment
administered by Michael Kelly ("Kelly"), saying she was surprised
at the amount of relief she felt. Although on June 6 Loturco
described the improvement as only "surface", and stated that the
deep musculature remained in spasm, causing continued tightness
in her neck, jaw, and lower back, she later reported on June 18
to Dr. Semble that the massages were helping.

During the fall of 1997, Loturco applied for disability
insurance benefits. As part of the Commissioner's review of her
application, each treating physician was requested to fill out a
report concerning her condition. They were also asked to submit
any relevant medical history.

On October 29, Dr. Semble submitted his report which described
Loturco's seven months of treatment. His medical notes from a
visit in August 1997, indicated that Loturco was still in pain despite being treated by both the chiropractor and massage
therapist on a regular basis. Consequently, Dr. Semble instructed
her to continue treatment because he found that she was still
disabled and unable to engage in activities such as house
cleaning. Dr. Semble's October 29 report sent to the Commissioner
stated that Loturco "sustained a causally related cervical
herniated disc for which she had persisted symptoms despite
prolonged chiropractic and massage therapy as well as injectional
therapy and medication." Similar to the other forms of treatment,
the trigger point injections were not as successful as he would
have liked because they did not offer her any long term relief.
Dr. Semble's final diagnosis for the Commissioner was that
Loturco's symptoms were permanent and that she had permanent
limitations on her ability to do her normal work. Continued
treatment of chiropractic, massage therapy, injectional treatment
and even the possibility of surgery was recommended.

On October 30, Dr. Carey submitted his report to the
Commissioner, diagnosing Loturco with "a cervical strain with
spasm and TMJ status-post a motor vehicle accident." In response
to the question of whether Loturco was capable of work-related
physical activities, he wrote that he was "unable to make a
determination," and deferred to "the specialist" to answer the
question.

On November 5, Dr. Schnapper reported that Loturco was
incapable of bending, sitting or standing for extended periods.
According to Dr. Schnapper, Loturco could not pull or push over
ten pounds or lift over five pounds. After the Commissioner received the reports from Loturco's
physicians, several consulting physicians examined Loturco at the
request of the Department of Social Security. On November 19,
1997, Loturco was examined by Dr. Michael Kreitzer ("Dr.
Kreitzer"), a consulting neurologist. After reviewing Loturco's
medical history, Dr. Kreitzer believed that Loturco suffered from
"post vehicular multitrauma syndrome." He reported, however, "It
is my feeling that neurologically the patient fails to
demonstrate any residua on clinical, neurophysiological or
neuroradiolgical boundaries and I must state that the patient has
in my impression, no findings to indicate that there is a
neurological deficit and no disability." Therefore, Dr. Kreitzer
found that Loturco did not need neurological treatment.

On November 26, Loturco met with Dr. Mohammed Khattak ("Dr.
Khattak"), who conducted an orthopedic examination that covered
Loturco's cervical spine, upper extremities, lumbar spine, and
lower extremities. In regards to her cervical spine, Dr. Khattak
determined the curvature of Loturco's spine was normal, there was
no spasm, Loturco had good range of motion, and her muscle
strength was normal. Loturco's upper extremities retained a full
range of motion in the shoulders, elbows, forearms, wrists and
fingers, allowing her to make a fist. She also had a full range
of motion in her hips, knees and ankles. Dr. Khattak diagnosed
Loturco with arthritis of the cervical spine, status-post
whiplash, disc herniation at C6-7 level, and possible cervical
radiculopathy and lumbar strain. His prognosis was that Loturco
would eventually improve and in the meantime, she had the
capacity to sit, bend, stand, walk, lift, and carry. Furthermore, she had
the ability to push and pull without assistance from a device.

That same day, Loturco also got an x-ray of her cervical spine
at the IMA Disability Services office. The Radiology report
showed a "straightening of the cervical lordotic curve consistent
with muscle spasm."

Approximately nine days later, a second EMG was performed on
Loturco's upper extremities. The test results were "consistent
with bilateral C7 radiculopathy and neurogenic dysfunction of the
cervical paraspinal muscles at C7, primarily on the right side.
There [was] no electrical evidence of peripheral neuropathy or
other focal neuropathy involving any of the upper extremities'
nerves tested."

On December 12, a New York state agency assessment was
conducted by Dr. Alan Auerbach ("Dr. Auerbach") to determine
whether she had the ability to perform work-related activities.
Based on all of the evidence in the file, Dr. Auerbach determined
Loturco was capable of occasionally lifting and/or carrying up to
twenty pounds, and frequently lifting ten pounds. She could sit,
stand or walk during the required six to eight hour workday and
had the unlimited ability to push or pull. Dr. Auerbach took into
consideration Loturco's age, and the level of activity she
sustained after the motor vehicle accident.

On January 9, 1998, Loturco was sent to see Dr. Howard
Kirschner ("Dr. Kirschner"), a consulting dentist. Dr.
Kirschner's report to the Commissioner strongly opposed the
diagnosis of Dr. Stanko, which he referred to as "nonsense." Dr. Kirschner found that Loturco's jaw did not shift out of alignment
and that she sustained no direct or indirect trauma to her TM
joints in the course of the accident." Loturco was capable of
bringing her back teeth together while chewing, a movement which
would be impossible if she was suffering from TMJ. In Dr.
Kirschner's opinion, Loturco's lack of improvement from her
alleged symptoms was an indication that her claim was either
"fallacious or not treated appropriately." Dr. Kirschner's
conclusion was in part based on Loturco's refusal to move her jaw
appropriately while he was attempting to take measurements, but
then, in her "attempt to produce the joint sound, she moved
enthusiastically and fully." Furthermore, Loturco appeared
uncomfortable wearing her mouthpiece, and her speech had not
adapted to wearing the appliance. It was also noted that the
mouthpiece looked "very new." Dr. Kirschner enthusiastically
rejected Dr. Stanko's opinion and questioned the truthfulness of
Loturco's alleged pain. In response to this report, Dr. Stanko
reiterated his position in a letter to Loturco's attorney,
stating the need for continued treatment for her chronic
condition of joint pain in her jaw.

On March 9, Dr. Carey declined to respond to the Commissioner's
second request for his diagnosis on Loturco's functional
capacity, particularly with respect to her ability to work. He
wrote in the report to "refer to orthopedist," which he earlier
identified as Dr. Semble.

On August 31, Loturco had a final related MRI. The report
stated that "at the C5-6 level again noted [was] a very small, slightly to the right of midline disc bulge. There is no evidence
of disc herniation at this level. At the C6-7 level the disc
herniation noted on the prior examination is no longer present.
No abnormality is seen at this level at this time."

Loturco chose this day as the end point of her disability. On
December 4, Dr. Semble found that Loturco had improved and had a
full range of motion.

Application and Hearing History

Jeanne Loturco, filed an application for disability insurance
benefits under Sections 216(1) and 223 of the Social Security
Act, claiming she was disabled for two years  from September 27,
1996 through August 31, 1998  due to injuries resulting from an
automobile accident. The Commissioner denied her application as
well as a request for reconsideration. Upon Loturco's request, a
hearing was held on March 2, 1999 before Administrative Law Judge
("ALJ") Frank Borda. The ALJ denied Loturco's request on June 9,
1999, finding Loturco was capable of performing light work
activity. The Appeals Council denied Loturco's request for a
review of the decision. Loturco then commenced a civil action. On
June 4, 2001, with consent of the parties, the ALJ decision was
remanded, pursuant to sentence six of 42 U.S.C. § 405(g), for
further proceedings. The Commissioner's decision was subsequently
vacated by the Appeals Council and remanded to the ALJ.

On May 29, 2002, the ALJ held a supplemental hearing. At the
hearing, Loturco was represented by counsel and testified about
her inability to work because her hands felt numb and she had
pain in her back, neck, and jaw as a result of a motor vehicle
accident. Loturco claimed the pain hindered her ability to sit,
stand, walk, and lift. On June 13, the ALJ found for various
reasons that Loturco was not disabled as defined in the Social
Security Act. First, Loturco's allegations regarding her physical
limitations were not completely credible, and second, she
maintained the "residual functional capacity to sit, stand and
walk as needed as well as lift objects weighing up to twenty
pounds" during the relevant two year period. Therefore the ALJ
found Loturco was capable of performing a full range of light
work.

Loturco appealed to the Appeals Council, contending the ALJ
made the same mistake that he made in his previous decision by
disregarding the objective medical evidence on record and failing
to give adequate weight to the treating physicians' findings. The
Appeals Council decided not to assume jurisdiction over this
matter. The Council supported the ALJ's overall assessment of the
evidence and determined it to be the final decision of the
Commissioner because plaintiff provided no basis for change.
Loturco subsequently commenced this action, seeking review of the
ALJ's determination that she was not disabled from September 27,
1996 through August 31, 1998.

DISCUSSION

In reviewing the decision of the Commissioner, a district court
may "enter, upon the pleadings and transcript of the record a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for rehearing." 42 U.S.C. § 405(g). A court must uphold the
Commissioner's decision unless it is not supported by substantial
evidence or is based on an error of law. Curry v. Apfel,
209 F.3d 117, 122 (2d Cir. 1998). Substantial evidence in this
context means "more than a scintilla. It means relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 n. 2 (2d
Cir. 2004) (citation omitted). It is not the function of the
reviewing court to determine de novo whether a claimant was
disabled. Curry, 209 F.3d at 122. Furthermore "it is the
function of the agency, and not this court, to weigh the
conflicting evidence in the record." Clark v. Commissioner of
Social Security, 143 F.3d 115, 118 (2d Cir. 1998). It is
well-settled that the ALJ is not required to "reconcile
explicitly every conflicting shred of medical testimony."
Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983); Mimms
v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984) (the ALJ's
credibility determination is subject to deference).

A finding of disability will be made if the applicant can
demonstrate the "[i]nability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The
statute additionally requires that the applicant's impairment be
"of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
The disability must be a result of physical or psychological
abnormalities that are "demonstrated by medically acceptable
clinical and laboratory diagnostic techniques."
42 U.S.C. § 432(d)(3).

A five-step process is used by the Commissioner and the ALJ to
assess an applicant's disability claim. See
20 C.F.R. § 404.1520. The Second Circuit has summarized the procedure as
follows:

First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe
impairment" [that] significantly limits his physical
or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third
inquiry is whether, based solely on medical evidence,
the claimant has an impairment . . . listed in
Appendix 1 of the regulations ["Appendix"]. If the
claimant has such an impairment, the [Commissioner]
will consider him disabled without considering
vocational factors such as age, education, and work
experience. . . . Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether,
despite the claimant's severe impairment, he has the
residual functional capacity to perform his past
work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines
whether there is other work [that] the claimant could
perform.

Curry, 209 F.3d at 122 (citation omitted).

Determining whether the claimant can perform other work
requires first determining whether the applicant retains the
functional capacity for work-related activities. If the applicant
is subject only to exertional,*fn2 or strength limitations, the ALJ then uses the medical-vocational guidelines
in 20 C.F.R. Part 404, Subpart P, Appendix 2 to cross-reference
on a grid the applicant's residual capacity with his age,
education, and work experience. The grid then yields a
determination of whether there is work the applicant could
perform in the national economy. Rosa, 168 F.3d at 78; see
also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).

The burden to prove the requirements of the first four steps is
on the claimant, but at step five, the burden shifts to the
Commissioner. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
In employing the five-step process, the Commissioner must
consider the following four factors: "(1) objective medical
facts; (2) diagnoses or medical opinions based on such facts; (3)
subjective evidence of pain or disability testified to by the
claimant or others; and (4) the claimant's educational
background, age, and work experience." Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (citation omitted).

The ALJ first determined that Loturco had not engaged in
substantial, gainful activity during the period in question from
September 27, 1996 through August 31, 1998. Next, the ALJ found
that the medical evidence established Loturco had cervical and jaw impairments that imposed limitations on her ability to
perform basic work related functions.*fn3 Third, the ALJ
correctly found that the medical documentation did not indicate
the existence of any abnormalities listed in the Appendix.
Fourth, the ALJ found that Loturco did not retain the residual
functional capacity to perform the heavy lifting required in her
past work as a licenced practicing nurse. The ALJ did find that
Loturco remained able to perform light work, including the
ability to lift light objects up to twenty pounds, and was able
to sit, stand, and walk as needed throughout an eight-hour
workday. He found that Loturco's ability to perform light work
was supported by her sustained level of daily activity, such as
cooking meals, driving distances of up to fifty-five miles,
shopping, and regularly socializing with family members. Fifth,
considering Loturco's age, education, work experience and
residual functional capacity, the ALJ determined that there was
alterative work Loturco could perform in the national economy
during the relevant time period. The ALJ found the Commissioner
met the burden of showing other work possibilities under
Loturco's impairments.

The Commissioner's denial of Loturco's disability benefits
application during the relevant time period was supported by
substantial evidence and did not contain legal error. The
limitations resulting from Loturco's spinal injury paled in
comparison to her residual functional capacity. Substantial evidence belies Loturco's claim that her pain disabled her for
approximately twenty-two months, as reports from Dr. Kane, Dr.
Semble, Dr. Kirschner, Dr. Neustadt, and Kelly indicate that her
complaints and her pain abated over time. The diagnostic MRI and
EMG tests revealed that Loturco had only slight abnormalities,
and that these abnormalities would not deny her the ability to do
light work. For example, the tests revealed Loturco had a normal
capacity of movement and good motor strength. Furthermore, both
the treating and consulting physicians decided that conservative
methods of treatment were the most appropriate for Loturco's
condition. Such treatment included wearing a mouth piece for jaw
discomfort, and taking Tylenol for back pain. Dr. Neustadt
recommended conservative topical treatments and physical therapy
in conjunction with returning to work. Based on the medical facts
and subjective evidence of the claimant, as well as the diagnoses
of several doctors, including Dr. Kreitzer, Dr. Khattack, and Dr.
Auerbach, Loturco maintained the capacity to sit, bend, stand,
walk, lift and carry, or push and pull as necessary for light
work. Indeed, doctors explicitly noted that Loturco was not
disabled during the time in question and that there was no
indication that her performance of light work would impair the
healing process.

Loturco argues that the ALJ's June 13, 2002 decision ("ALJ
Decision") should be reversed because the ALJ improperly gave
controlling weight to the consulting physicians' opinions, rather than her treating physicians, Dr. Carey and Dr. Semble.*fn4
The treating physician rule provides:

Generally, we give more weight to opinions from your
treating sources, since these sources are likely to
be the medical professionals most able to provide a
detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to
the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of
individual examinations, such as consultative
examinations or brief hospitalizations. If we find
that a treating source's opinion on the issue(s) of
the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in
your case record, we will give it controlling weight.

20 C.F.R. § 404.1527(d)(2). If the ALJ does not give treating
sources controlling weight, five factors must be applied to
determine the weight of the opinion. The factors are:

(1) the frequency of examination and the length,
nature and extent of the treatment relationship; (2)
the evidence in support of the treating physician's
opinion; (3) the consistency of the opinion with the
record as a whole; (4) whether the opinion is from a
specialist; and (5) other factors brought to the
Social Security Administration's attention that tend
to support or contradict the opinion.

The parties do not dispute the ALJ's conclusion that Dr. Carey
and Dr. Semble were "treating physicians."*fn5 See 20
C.F.R. § 404.1502. Moreover, despite her emphasis on a few comments by
Dr. Stanko and Dr. Neustadt, Loturco admits that those doctors do
not meet the "requirements of length and frequency of
treatment"*fn6 to be considered treating physicians.

The ALJ found the treating physicians' opinions were "vague and
inconsistent with the objective medical evidence." As noted in
the ALJ Decision, Dr. Carey's October 30, 1997 report to the
Commissioner stated that he could not make a determination on Loturco's ability to conduct work related activities, and that
the determination should be reserved for a specialist. Therefore,
Dr. Carey did not provide an independent medical opinion to which
"controlling weight" would be assigned under the treating
physician rule. The opinion of Dr. Semble, who opined that
Loturco's symptoms were "permanent," and that she had "permanent
limitations in her ability to do her normal work," was not
consistent with the objective medical evidence or other
physicians' opinions. See Halloran v. Barnhart, 362 F.3d 28,
31 (2d Cir. 2004). Even so, when parsed, Dr. Semble's conclusion
is merely that Loturco could not perform her "normal work" of a
nurse; he did not opine that she could not do any work. Thus,
even if "controlling weight" were assigned to Dr. Semble's
opinion under the treating physician rule, it would not alter the
outcome of this case because it is not inconsistent with a
finding that Loturco could perform light work.

Loturco's remaining arguments are inapposite. Loturco claims
that Dr. Stanko's and Dr. Neustadt's opinions should have been
giving controlling weight, but fails to articulate any legal
basis for assigning such weight to the opinions of consulting
physicians. In any event, Dr. Stanko did not conclude that
Loturco was unable to perform alternative work, and Dr.
Neustadt's opinion only further supports the Commissioner's
position. Loturco also claims that the ALJ did not consider
evidence consistent with the opinions of treating physicians,
such as an MRI showing a herniated disc. This evidence was
contradicted both by objective medical evidence of an earlier CT scan and a subsequent MRI showing no herniation, as well as
multiple physicians' opinions suggesting Loturco could perform
light work, including those of Drs. Bostic, Neustadt, and
Khattack.

CONCLUSION

Loturco's motion for a judgment on the pleadings is denied. The
Government's cross-motion for the judgment on the pleadings is
granted. The Clerk of Court shall close the case.

SO ORDERED.

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